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Regulation Run Amok—And How to Fight Back

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http://patriotrising.com/2015/05/10/regulation-run-amok-and-how-to-fight-back/

 

America is no longer the land of the free. We are still free in the sense that Norwegians, Germans and Italians are free. But that’s not what Americans used to mean by freedom.

 

It was our boast that in America, unlike in any other country, you could live your life as you saw fit as long as you accorded the same liberty to everyone else. The “sum of good government,” as Thomas Jefferson put it in his first inaugural address, was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry and improvement.” Americans were to live under a presumption of freedom.

 

The federal government remained remarkably true to that ideal—for white male Americans, at any rate—for the first 150 years of our history. Then, with FDR’s New Deal and the rise of the modern regulatory state, our founding principle was subordinated to other priorities and agendas. What made America unique first blurred, then faded, and today is almost gone.

 

We now live under a presumption of constraint. Put aside all the ways in which city and state governments require us to march to their drummers and consider just the federal government. The number of federal crimes you could commit as of 2007 (the last year they were tallied) was about 4,450, a 50% increase since just 1980. A comparative handful of those crimes are “malum in se”—bad in themselves. The rest are “malum prohibitum”—crimes because the government disapproves.

 

The laws setting out these crimes are often so complicated that only lawyers, working in teams, know everything that the law requires. Everyone knows how to obey the laws against robbery. No individual can know how to “obey” laws such as Sarbanes-Oxley (810 pages), the Affordable Care Act (1,024 pages) or Dodd-Frank (2,300 pages). We submit to them.

 

The laws passed by Congress are just the beginning. In 2013, the Code of Federal Regulations numbered over 175,000 pages. Only a fraction of those pages involved regulations based on something spelled out in legislation. Since the early 1940s, Congress has been permitted by the Supreme Court to tell regulatory agencies to create rules that are “generally fair and equitable” or “just and reasonable” or that prohibit “unfair methods of competition” or “excessive profits,” and leave it to the regulators to make up whatever rules they think serve those lofty goals.

 

It gets worse. If a regulatory agency comes after you, forget about juries, proof of guilt beyond a reasonable doubt, disinterested judges and other rights that are part of due process in ordinary courts. The “administrative courts” through which the regulatory agencies impose their will are run by the regulatory agencies themselves, much as if the police department could make up its own laws and then employ its own prosecutors, judges and courts of appeals.

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